Legal Commentary

The other day, I shared some of Jeff Lipshaw's advice for beginning law professors. It triggered this  conniption from Scott Greenfield at Simple Justice. Apparently Greenfield was so blinded by rage  over the fact that law profs don't always care about whether their scholarship had practical utility to practicing lawyers that he couldn't even accurately read that the advice actually came largely from Jeff (instead of me). In any event, I'd be happy to take credit for Jeff's pearls.

To my mind, Greenfield's rant is misdirected.  Putting aside the juvenile tone --  is a description of academia as a big "circle-jerk" really all that illuminating? -- let me just make a few quick points on the merits. The point Jeff was making and which I seconded is that it's important for a good law review article to explain why something matters to other scholars and not just whether the courts should clarify some aspect of doctrine. The reason: if one can't persuade a law professor who studies the issue that one's got a problem worth studying and spending more time on, then there's not much comparative advantage between law professors and competent third year associates who can just spend a few hours reading and synthesizing the cases. Second, a lot of professorial work product is more than just interpretive and therefore not necessarily directed at courts and practicing lawyers: often it is directed to legislative bodies or executive policy-makers. So there's no reason for Greenfield or other practicing lawyers to take umbrage at being excluded from the conversation if their only reason for reading these pieces is to find out how it will help their clients in litigation.  Last, some law professors are writing purely for knowledge's sake and not to advance a public policy change. Think about the history of a defunct law--and what might that tell us about culture then?  That might seem like a study without practical utility but it doesn't mean it has no place in academic conversations. Greenfield's view seems to require a rather shallow conception of what university professors should do. But not all work must come before Greenfield's tribunal of the contemporary and the relevant!

So Scott, loosen up, and let a thousand flowers bloom. Many law professors care about the social utility of their work while some don't--or at least they define utility more broadly than you might think worthwhile. But almost all care that the work being produced bears independence of thought and carefulness with the scope of claims. By encouraging aspiring law profs to emulate those qualities, Lipshaw, a former partner and GC at a big company, does no wrong.